The Danish Data Protection Authority has assessed that Berlingske is now complying with the order that the authority issued to the company in February 2024.
On 14 February 2024, the Danish Data Protection Authority made a decision on Berlingske’s use of a cookie wall on berlingske.dk. The Authority found that Berlingske’s approach, where users on berlingske.dk could only access embedded content by giving consent to the processing of personal data for statistical and marketing purposes, did not meet the requirements of the General Data Protection Regulation for valid consent. The reason was that users were not actually presented with a free choice, as Berlingske did not offer users an alternative way to access the content in connection with giving consent. The Authority therefore found grounds to issue Berlingske with an injunction to ensure that the consent obtained from users on berlingske.dk meets the requirements of the General Data Protection Regulation.
As a follow-up to the Danish Data Protection Agency’s order, the Danish Data Protection Agency made a further decision in the case on 4 September 2024 – after submission to the Danish Data Protection Council. This was in connection with Berlingske having reversed itself in relation to the Danish Data Protection Agency’s decision from February 2024. The Danish Data Protection Agency found that Berlingske had still not demonstrated that the company offered a reasonable alternative in connection with the provision of consent on berlingske.dk. The Danish Data Protection Agency’s order had not been complied with.
Berlingske subsequently announced during the autumn of 2024 that the company had implemented new measures and adjustments to comply with the Danish Data Protection Authority’s order.
The Danish Data Protection Authority assesses that Berlingske is now complying with the authority’s orders.
In a decision of January 17, 2025, the Danish Data Protection Authority concludes that Berlingske has now sufficiently ensured that the consent obtained from users on berlingske.dk meets the requirements of the General Data Protection Regulation for valid consent.
The Danish Data Protection Authority notes in the decision that users who refuse to consent to the processing of personal data for statistical and marketing purposes may gain access to partial content that is largely similar to the content available to users who consent. The Authority also notes that Berlingske offers users an alternative to consent that essentially contains the same functions and is of a similar quality.
A reasonable alternative
In the opinion of the Danish Data Protection Agency, companies that wish to use a cookie wall must also offer users who do not wish to consent to the processing of their personal data a reasonable alternative. This means that the content or service offered by the company must be substantially equivalent, regardless of whether the user consents to the processing of their personal data or chooses the alternative version without processing of personal data.
The European Data Protection Board (EDPB) has stated in its opinion on the use of ‘consent or pay’ solutions by large online platforms that the alternative can be considered equivalent as long as it contains essentially the same elements and functionalities and preserves the quality that the user gains access to by giving consent. However, it is not a requirement that the two versions are completely identical.